*1 Assеmbly recognized that this has General dispute PARTNERSHIP, LTD., should
form of alternative resolution The CAIN Court, to all citizens. This be made available Plaintiff-Appellant, following legislature, has es- the lead of v. on Alternative Dis- tablished a Commission recently promulgat- pute Resolution and SERVICES PIONEER INVESTMENT encourage a permit that mil ed rules COMPANY, Defendant-Appellee. greater partic- judicial presence and wider Ad- ipation dispute in alternative resolution. process mittedly, our investment nevertheless, dispute heavy; alternative Louisville, First National Bank of succeed, finali- is to there must be resolution Intervenor. ty finality of arbitration awards and deci- — sions. Tennessee, Supreme Court support for finali- Strong reasons this need at Knoxville. high
ty. attaching such a The reason for degree made of conclusiveness to an award 22, 1996. Jan. have, them- by arbitrators is that the selves, by agreement, substituted a tribunal choosing for the one
of their own end that and established usually incurred expense avoid the litigation bring speedy to a the cause permit To a dissatisfied
final determination. award and party to set aside the arbitration judgment upon the to invoke the Court’s of the cause would render arbitration merits step the dis- merely a in the settlement of final pute, instead of its determination. reasons, Supreme articulated These ago seventy-five years Court of Florida over Wells, 72 Fla. 73 So. Johnson (1916), today’s 190-91 remain relevant legislation. arbitration Thus, enforceability of finality and arbi- award is a characteristic of arbitration distinguishes forms tration that it from other integri- dispute resolution. Its of alternative compromised, ty undermined or must preserved and enhanced. but reasons, find that For all these we scope Appeals misinterpreted its Court of authority of Tenn. and exceeded the review 29-5-313(a). Accordingly, we Code Ann. Appeals judgment of the Court of reverse the court. judgment of the trial and reinstate the ANDERSON, C.J., DROWOTA, WHITE, JJ., REID and concur.
I circumstances which form
The facts and present- questions of law the context for the Part- disputed. In the Cain ed are not (Cain), partnership, nership LTD a limited a tract of commercial real leased County for a of 20 located in Knox term years granted lessee years for terms of 20 extend the lease three In years. of 15 each and an additional term assigned subsidiary was to a defendant, Pioneer Investment Ser- (Pioneer), and later transferred vices Co. Pioneer. to the provisions of the lease relevant
issues are: In of the lease aforesaid consideration agrees for the Lessee contracts premises an annual rental of the aforesaid $1,500.00 $18,000.00,payable at the rate of advance, per the first said month- month day ly payment to due on the 1st paid at January, 1975. The rental shall be general partner the office of the of Lessor Knoxville, Tennessee, promptly when demand either due and without premises or elsewhere. lease,
As consideration for said further Farmer, Hodges, Doughty B. monthly pаyment Dean & Car- in addition to the son, Parrish, herein, Larry Larry E. Knoxville Lessee shall for Parrish, P.C., Memphis, Plaintiff-Ap- E. all real taxes assessed pellant. during property by taxing authorities said of this lease and renewal term Thomas, Jr., Kennerly, G. Mont- Wendell paid promptly shall be thereof. Said taxes P.C., Knoxville, gomery Finley, & for Defen- during the entire term. due dant-Appellee. language regarding contains no The lease Gossett, Donelson, Heiskell, Richard B. performance, forfei- defaults in Bearman, Adams, Kirsch, Chatta- Williams & ture, of the terms of or remedies for breach Stinnett, nooga and R. Thomas Stone & lease, allowing except Hinds, P.C., Knoxville, for Intervenor. recovery attorneys’ in the event Cain fees required to take action should be OPINION enforce the terms of the lease. REID, Justice. arrange- In facilitate an presents
This case
for review the de
order to
summary
First National
granting
cision of the trial court
ment between Pioneer and
(the Bank)
develop-
judgment
un
for a
to the
Bаnk of Louisville
defendant/lessee
to be
possession ment loan from the Bank to Pioneer
lawful detainer action to recover
by a deed of trust on the lessee’s
of certain commercial
leased to the
secured
property,
exe-
plaintiff.
leasehold interest in the
Cain
defendant
The award
reversed,
Estoppel Certificate”
summary judgment is
and the case
cuted a “Landlord’s
Pioneer, whereby
of the Bank and
is remanded to the trial court.
benefit
Lease,
lacks a termination
give
Colonial
agreed that it would
notice to the
Cain
clause,
not terminated
perfor-
or forfeiture
any default
Pioneer in the
Bank of
filing
bankruptcy
give
prior
and would
the Bank
of Pioneer’s
mance of the lease
Partnership took no
receipt
petition
because the
days
from the date of its
think
to terminate the lease. We
which to cure the default.
action
notice within
interpret-
return,
properly
agreed
Bank
Cain notice
that the Distriсt Court
*3
reaching
law in
any
applied
ed and
Tennessee
default
Pioneer’s
this conclusion.
Bank.
Co.,
Inv.
In re Pioneer
Serv.
The lease which is the
subject
the
of extensive
tion
been
12, 1991, subsequent to the
On November
including
by
proceedings,
a case decided
the
proceedings in federal
termination of the
Though
Appeals.1
Sixth Circuit Court
court,
The com-
this suit was commenced.
controlling
of the issues in
the determination
(Tenn.Code
plaint alleges unlawful detainer
case,
proceedings provide relevant
those
(1980))
posses-
and seeks
Ann.
29-18-104
put
in focus.
circumstances and
the issues
premises, incidental dam-
sion of the leased
plaintiff con-
ages,
attorney’s
fees. The
12,1989,
voluntary
April
Pioneer filed a
On
automatically terminated
tends that the lease
petition
bankruptcy
and became
debtor-
the taxes
upon the defendant’s failure
25,1989,
May
Cain filed a
in-possession. On
and,
alternative,
due,
that
the
stay
that
motion to lift the automatic
so
Cain
comply
persistеd in its failure to
defendant
repossess
property, on the
could
the leased
pay-
provisions
for the
the
of the lease
with
“automatically”
ground that
the lease had
adequate
receipt
of taxes after the
ment
had failed to
terminated because the lessee
opportunity
cure the default.
notice and an
due. The bank-
pay the
taxes when
stay, holding
lift
ruptcy court refused to
the
intervene,
Bank,
was allowed to
The
which
specific
in the absence of a
forfeiture
complaint,
the
con-
filed a motion to dismiss
lease does not
provision, a non-residential
estoppel certifi-
tending
pursuant to the
automatically upon
pay-
terminate
default
cate,
Bank
obligated to
Cain was
ap-
by the lessee. On
performance
ment or
any
cure
opportunity
of and an
notice
judge
holding
peal, the district
affirmed
any
prior to
initiation of
action to
default
and,
addition,
bankruptcy judge
the lease terminated.
hаve
lease contained no
found that because the
accepted
argu-
trial court
Pioneer’s
The
no
provision,
forfeiture or termination
default
judicially
could not be
ment that
grounds
would constitute
the defendant
provision
it
no
terminated because
contains
of the lease. The Sixth Cir-
for termination
termination,
the issue raised
for
declared
decision of
Appeals
cuit Court of
affirmed the
moot,
complaint.
Bank
and dismissed
court,
approval to
but limited its
the district
Bank
Appeals
held that the
The Court
interpretation
ground. That court’s
the first
given
opportunity
an
to cure
had not been
subject
stated
of Tennessee law on the
filed, as re-
before the suit was
the default
as follows:
certificate, and af-
quired by
estoppel
bankruptcy court and the district
[T]he
of the suit.2
the trial court’s dismissal
firmed
that Tennessee law re-
court determined
appeal, the record
purposes
For the
of this
by a lessor in
quires affirmative conduct
finding that
trial cоurt’s
supports
to terminate
nonresidential
order
assessed
the taxes
lessee failed
lacks a termination or
that failure was a
property, and
Accord-
ground of breach.
clause on the
the lease.
breach of a material
ingly,
below concluded
the courts
(6th
R.App.P.
with its borrow-
14 that "all differences
F.2d 445
1. In Re Pioneer Inv. Serv. Co. 946
denied,
Cir.1991),
respect
U.S.
112 S.Ct.
it
cert.
interest which
ers ... with
subject
119 L.Ed.2d
property which is the
had in the
have
litigation,"
resolved.
had been
matter of this
agree-
Subsequently, the Bank entered into
longer
Consequently,
the Bank is no
property,
liens on the leased
ment to release the
Court.
pursuant
to Tenn.
and notified this Court
It is
years
longer
or shorter terms.
II
lessees,
ejected,
if
quite
that such
clear
only
issue before the Court is the
compensated ade-
not have been
would
Consequently,
to the lessor.
relief available
given dam-
had
been
quately
presented
question
is a
of law.
the issue
seen, too,
govern-
ages.
have
We
Questions of law are reviewed de novo
depopulation of
stop
ment desired
Tenn.
presumption
no
of correctness. See
country
conversion of
caused
13(d);
Corp. v.
R.App.P.
Union Carbide
pasture
sheep.
It is
arable land into
(Tenn.1993).
Huddleston, 854
S.W.2d
ejected lessee
that a rule that the
obvious
have
not recover the land would
could
III
landlords,
operations
facilitated the
principles defining
rights
and obli-
policy.
pursuing this undesirable
who were
gations of the
to a lease of real
*4
History
English
A
3
Holdsworth
William
of
property developed
part
as
of the common
(5th
1991).
Law,
reprinted
216-17
ed.
property
from both
and con-
law and arise
recently,
utility of a lease has
More
regarding
A
tract
law.
short review
shelter,
provision of
and the mainte-
been its
principles
helpful in
evolvement of these
growing
conditions for a
nance of habitable
obligations of
determining
rights
and
popula-
population: “The urbanization of the
parties in this case.
resulting
growth
from the
of cities
tion
the focus of the lease transaction
shifted
The Nature
a Lease
of
shelter,
produced
and has
from land to
originally
A lease for a definite term
bargaining power
land-
inequality of
between
device,
moneylending
as a
used to
served
tenant,
cited
lord and
factors that have been
usury3,
avoid the ecclesiastical ban on
judicial
prominently in
decisions ex-
recent
consequently, a lease
deemed to be a
panding
rights
tenants.” 2
of residential
personal and contractual interest. 2 Richard
Powell,
Property
Richard R.
Powell on Real
(1994).
Powell,
Property §
R.
Real
16.02[l][a]
background
§at
The historical
16.02[l][a].
instead,
Gradually, the lease became used
practical
provides
that a
services
farming
allow landowners to contract for the
present
have culminated into the
status of
landless; again
of their lands
“the
lease which has been summarized as follows:
tenant was
definition ‘one who had no
rights and duties
A lease of land creates
land,
right
merely
in the
but
the benefit of a
First,
independent grounds.
on two
based
”
(quoting 2
contract.’
Id
F. Pollock & F.
conveyance
represents
the lease
of an
(1895)).
Maitland, History
English Law 36
of
relationship
property
and a
estate
1500,
Between 1200 and
the lessee became
arises between the lessor and lessee based
recognized as the
of
owner
an interest
ownership
premises.
of the demised
land,
“conveyance”
and the lease as a
of an
privity
of
are said to be
estate in land.
long
estate as
as the landlord-tenant rela-
why
change
The reasons
was made
Second,
agree-
tionship
exists.
partly legal
partly
were
economic.
relationship be-
ment creates a contractual
machinery
a term
We have seen
tween the lessor and lessee. The
years
had
ceased
technical
privity
of contract with
are said to be
employed
reasons to be
in the creation of a
defining
rights
the terms оf the lease
their
mortgage.
Typically,
Therefore the beneficial lease
ob-
obligations.
the lessee’s
purpose
ligation
for this
went out of use. We have
rent and taxes arises
decay
privity
privity
of the
seen
labour-service
virtue of both
of estate
Schoshinski,
system
great
was the cause of a
extension
of contract. See
American
8.1,
§
at 532
practice
letting
to lessees
Law Landlord and Tenant
the land
Powell,
Property
money-lending
2 Richard R.
Real
function occurred as fol-
loan.”
"[T]he
16.02[l][a],
(1994);
landowner would lease the
R.
§
lows: The
n. 1
see also 1 Milton
lender, fixing
1.1,
Friedman,
duration to
term sufficient
on Leases
n. 10
Friedman
recover,
productivity
allow the lender to
from the
(1990).
land,
principal
of the
both the
and interest of the
Bixler,
(1980);
Re-entry Law
Detainer and
Consumer’s Ice Co.
(1896).
Md.
Nashville Hous. 1019, 1021 noncompliance by the of “material cases agreement.” Ac- tenant the rental Forfeiture Act, cordingly, under the Uniform *6 However, by itself the detainer statute termination, subject remedy of landlord’s problem does not address the of the tenant tenant, recog- is proper to notice to the provisions of the lease who breaches the regardless of whether the landlord nized Thus, by expired. has not its terms at which right to termi- specifically reserved law, specifically had to common the landlord (Sec- in the lease. The Restatement nate provide upon for a forfeiture lease ond) substantially the Property5 takes of of the terms in the lease itself. For breach allowing to ter- position, the landlord same 611, instance, Dooley, in Barnett v. 186 Tenn. for the tenant’s failure minate the lease 598, (1948), 212 S.W.2d 600 thе Court held: promise a reasonable perform a within pay The law is that “a tenant’s failure to being requested by the landlord time after rent does not terminate or forfeit his ten failure as a result of the to do so where ancy, of significant the absence a deprived is of a “the landlord forfeiture; for such there making lease where the lease.” inducement provision, make is such a the landlord must failure to leave volun- Upon the tenant’s breach, formal demand of the rent ... unless such tarily failure to correct the after by by act of demand is waived the lease or reme- may pursue whatever the landlord Holt, Tenn.App. parties.” Smith v. 29 local law to recov- provided dies are 31, 193 100, 102 property S.W.2d from a holdover tenant. er many changed in This harsh result has been Tenn.Code Ann. § 17.02[l][a][ii]. Id. at Cf. (1993) by (providing instances statute: termi- § 66-28-505 governed by the Tennessee simply im- a lease lease nation of At common Landlord and Tenant Residential posed promissory on the ten- Unifоrm unpaid and the more, rent is when due nothing “[i]f a breach of the ant and Act— Ballard, 86, [459]. 5. Discussed at Newport Auth. v. Hous. infra (Tenn. 1992). 89 458 pay, concept, This law which is based
tenant fails to
written notice
common
conditions,
on the technical characteristics
nonpayment
required”
landlord of
covenants,
lease.)
has been re-
However,
and limitations7
termination of a residential
jurisdictions by
placed in most
statutes
the Tennessee statute is limited
residential
summary procedure
provide the landlord a
control the
leases and does not
its terms
whereby
the tenant
be evicted after a
rights
parties
and liabilities of the
to lease
or
default in the
whether
property.6
of non-residential
terminating
lease has a clause
pay
rent. Restatement of
failure
IV
(Second)
(1977);
Property
2 Powell on
12.1
Prior decisions of this Court have followed
However,
Property
17.02[l][a][ii].
Real
at
concept
the common law
that a lease is a
applicable
statute
Tennеssee has no such
conveyance
of an interest
in real
non-residential leases.
rights
and the
are determined
positions
The
this case
by property law.
In Planters Ins. Co. v.
of these traditional
demonstrate the failure
(1876),
Diggs,
portion property; by Appeals significance and that is of no further in re- written obligated give solving the agreement, the lessor was issue. opportunity the intervenor notice of and an The ultimate issue to be determined is any any prior
to cure
defaults
to initiation of
any
whether or not the common law or
con-
action
terminated.
In
to declare
lease
trolling
prohibits
statute
the lessor from ter-
application
permis-
the interval since the
minating
property
of real
commercial lease
City
appeal
granted,
sion to
the National
which does not have a termination clause
Bank, successor to First National Bank of when a tenant breaches a collateral condition
Louisville,
apparently relinquished any
has
of the lease.
subject
litiga-
interest
matter of this
Appellant forcefully argues that this court
longer party litigant.
tion and is no
(1876),
Diggs,
in Planters v.
(1) say on to “This complaint The trial court dismissed the The Planters court went condition, sought perform how- plaintiff insofar as to terminate the ease is collateral lease; ever, princi- that is to the taxes but substantially ple is the same. such ease (2) seeking A motion to amend to termi- think sound rule we deducible non-payment nate the lease as a result of authorities, that if the be made failing 1992 taxes was denied as to state a advantage before the forfeiture is taken granted. claim for which relief could be re-entry by purpose, in the landlord for this Partnership appealed the trial Cain accordance with the contained judgment. court lease, forfeiture is saved. The forfei- ture enforceable such affirmative Appeals solely on The Court of ruled landlord, action, option being held, intervenor. “The issue raised оption and if the tenant before the maintaining precedent conditions this ac- re-entry purpose, for this he exercised tion were not met the failure of the lessor existence, contract is in paid while the alleged the intervenor notice of the having terminating it not been the condition opportunity remedy default and an such *9 of, thereby advantage and he saves taken action”, prior instituting say- to this default himself from the forfeiture.” ing the trial court should have sustained the Appellant English to an earlier judgment It affirmed the also refers motion dismiss. Lane, case, dating and the trial court modified. Due to the Davis v. Merrill of intervenor, that year 1851 which in substance held action taken it must be taxes, no judgment a lessee covenants to that of the Court of where concluded
461 (1970) which, going far be- necessary 1074 while to constitute a demand was case, breach, yond parameters to avail himself of this dealt with so as to entitle lessor re-entry. landlord, in dispute for The lease and contains rele- tenant a covenant to rates language: this case contained vant re-entry proviso with a for and Since, analysis, a in traditional lease any of of the covenants. think breach We land, conveyance an in of interest proviso that this could be construed as special usually utilized the courts have ruling termination clause of sorts and the governing property transactions rules very in of little assistance the case before us. involving controversies leases. to resolve and do Since the older cases are obscure However, Supreme as the Court has noted provide any definitive answer to the issue context, body private “the of another language before us we must look to the con- law., than almost more tained in the lease at hand in order to it shaped of has been other branch applicable day to modern anal- construction validity largely histor- distinctions whose ysis generally. of commercial leases There duty reappraise old ical. Courts have a litigation has been much between the light and doctrines in the of facts including adversary proceeding contemporary particularly values of life— Court, Bankruptcy Eastern United States old common law doctrines which the Tennessee, subsequent District of a volun- developed. courts themselves created and tary petition Chapter of Title before, said the continued vi- As we have Laws, Bankruptcy ulti- facets tality . the common law mately were decided the Sixth Circuit ability depends upon its contem- reflect Appeals. Court It is of some assistance community porary values eth- findings for us to take note of some of the (emphasis supplied). . ics” and determinations of the Federal Courts however, Ironically, governing the rules proceedings involving the course of the Pio- interpretation “pre- the construction and application neer Investment Services dominatеly obligations in leas- contractual” Chapter 11 relief. It was observed in old es have too often remained rooted Bankruptcy Court in the course of those property law.... proceedings that the lease involved courts have realized that certain of “Some automatically case had not been terminated governing law the old rules prior bankruptcy as a result of Pioneer’s inappropriate today’s trans- leases are failure to taxes assessed In more in actions. order reach results estate, leasehold because under Tennessee legitimate expectations of accord with the required by Law conduct is affirmative com- and the standards lessor to terminate a non-residential munity, gradually have been intro- clause,1 (Emphasis courts which lacks a forfeiture precepts ducing more modem of contract supplied.) affirming The Sixth Circuit in interpreting Proceeding law leases. Bankruptcy Court the District Court has, hоwever, piecemeal led confusion stated, substance, the lower courts conflicting, frequently “decisions are where properly interpreted applied Tennessee healthy disagreement on not because of a law in their conclusion “that the Colonial lingering policy social but because of the Lease, which lacked a termination or forfei- impact policies long are of rules whose prior ture clause was not terminated to the since dead.” filing bankruptcy petition of Pioneer’s be- Partnership cause the Cain had not taken Tennessee, must be construed a lease any action to terminate the lease.” strongly against most the lessor and most lessee, favorably especially in to the The case of Javins v. First National Real ty Corporation, U.S.App.D.C. regard 428 F.2d of taxes where due, pay, promptly, bankruptcy proceeding April 1. The was filed 12 that it had failed to plain- complaint certain of thе real taxes and 1989. The this case relates put institute suit as a result of that defendant was first on notice on or about 29 tiff intended to August again September failure. *10 lessee; required paid by this lease and renewal thereof. Said taxes are to be wording the lease is not paid promptly but where the be when due taxes shall term, according ambiguous, it must be construed sup- during (emphasis the entire wording thereof, (emphasis supplied). plied.) The court can construe a lease as writ- in certainly ambiguity There is not ten, and cannot make a new contract for the wording simple provisions of these of this parties parties. The intention of the as as- parties ascer- lease. The intention of the language certained of the instrument itself, language tained from the of the lease controls construction of a paying as the conduct of the lessee in well (1993 Juris., Tenant, 5,§ Landlord and Tenn. promptly when due. There is no the rent Rep.Vol.) in this record that the lessee did nоt evidence necessary Following precept it is faithfully to understand and adhere agreement to look to the lease determine the by payment in terms of the lease of the rent parties requirement and the intention of the the other accordance with its terms. On agreement for a clause in the in hand, bankruptcy judge as noted order to allow the lessor to declare the lease memorandum, . his final “Pioneer void for breach of a material by failing antagonized the situation part instrument on the of the lessee. The except the taxes on its leasehold estate at its subject litigation lease which is the of this Although the issue is moot because whim”.2 pertinent part: states appellee ultimately pay- tax allowed the That for and consideration of the cove- delinquent, fact that the ments to become contained, and conditions herein nants grant legislature tax collector and lessee, kept performed grace period after the date taxes become due let, hereby grant lessor does and lease payment prior to the time become lessee, following . unto the delinquent does not alter the terms of the premises, . described to-wit: no parties.3 between the There is contract premises To have and to hold the aforesaid reason, way, possible within that the terms aforesaid, for the term unto the lessee contract, or the intention of the subject to and conditions stated the terms language misconstrued based on the could be herein. It is not a case contained instrument. aforesaid, of the lease consideration taking advantage of an where a lessor is agrees for the lessee contracts and unknowing or lessee. In this unlettered premises an annual rental of aforesaid case, entities entered into two $18,000.00,payable at the rate of colórate $1500.00 large very contract for the lease of a tract of аdvance, per first month- month said property. no valuable There is evidence day ly payment to be due on the 1st any overreaching or fraud. Where a con- January, paid 1975. shall be at The rental ambiguous, tract is clear and not general partner of lessor the office Knoxville, Tennessee, n promptly from the four intentions are be determined when Hold of the contract. See Bokor v. comers either due and without demand elsewhere, er, (Tenn.App.1986). (emphasis sup- premises or in this ease the lessee plied.) is inconceivable that provision for the clearly understand the could lease, for said As further consideration due, on the payment promptly when monthly provid- payment in addition to the understand, month, day first of each herein, pay all real ed the lessee shall equal clarity, payment of the prop- said taxes assessed due, on the date the erty by taxing during promptly term meant authorities provides assigned April for a discount fоr lease on 13 3. T.C.A. 67-5-1804 2. Pioneer was Apparently early payment. 1987. the first default in Taxes due on 1 October taxes occurred 1989. 67-2-701), (T.C.A. delinquent became July paid and were not until 23 March 1990 *11 paid. This intent was the lease could be terminated taxes were to be was a condition that in terms of vulnerable to was a default the and the lease termination there are Implied conditions contracts cre- of the condition. stated. violation arising of in the absence of ations the law confronting the in mak- problem The court express that which the law contracts to do analysis ing in is appropriate an this case says ought as a matter of to be done many primarily the older cases of are justice. They and are such as reason and opposed land leases as to com- involved with which, therefore, justice dictate, the and law present day as considered in mercial leases presumes every per- man undertakes Moreover, they intermingle law. conse- the Generally implied contract is form. one quences a breach of a covenant and which is conduct of inferred the the of a condition. There violation is some en- parties; necessarily expressed it is not in lightenment in the more opinion recent Contracts, Tenn.Juris., words. Matthews v. Tenn. Crofford meeting There is no that there was a doubt 695, (1914), in S.W. which Chief Neil Justice the of the minds in this case between lessor opinion in a compli- the delivered somewhat nothing in and the There is lessee. suit. in- cated unlawful detainer The case paid record to was not indicate year volved a two lease on certain real estate promptly in accordance with when due the Memphis. City of fell the The lessee nothing in terms of the There is the payment of notes behind on the executed for record to indicate that the taxes were not securing purpose the and an rent paid promptly during due the term filed unlawful detainer suit was the lessor. by any predecessor lessee to the The trial and judgment suit came to was appellee dispute Pioneer cannot this case. possession. rendered favor of the lessor for assignor’s place that it in its so stands appealed, ultimately The case and assume the of its contract. burden Supreme Court. far reached the In the charged with notice of the terms of the lease decision, ranging Neil Justice discussed the by accepting possession and of the leased multiple of the case and facets insofar as is premises subjected itself to all the cove- relevant, cited a number of authorities to nants which run with the land and the condi- effect that the action of unlawful detainer is agreement. tions of the lease personal entry. substitute He underlying equity the reason In courts rule is settled observed that these subject, on this cases is that the statutes and forfeitures relieved wherever are detainer, entry compensation and That designed forcible were can be made. rule is preserve good peace society inapplicable and the facts of this order of case. prevent likely and to the collisions that are so The defendant in this case has allowed the delinquent. follow invasions of real estate. taxes to The The Court become com- process pensation ruled that the service in the un- that could be made would be operated penalties, lawful detainer suit as a construc- accrued inciden- re-entry, tive actual re-entry by expenses tal in the lease prescribed unnecessary. ignore landlord was cannot event default. A lessee in a condition taxes contained us, question On the “does the omis- agreement obligate to either a lessor sion of the termination clause in the lease consequences taxes or suffer the hav- agreement prevent a termination of the lease ing highest leasehold sold bidder violation of one of its material condi- a tax at sale. Such a result would uncon- tions”, certainly, such clause most would scionable. probably preclude litigation. or minimize clause, interpreting primary absence of or a rule for instru- authorizing re-entry an ments is to the intention of the ascertain However, disputation. parties. determining invitation to inten- review of tions, impels say phrases contained in cases me the omission is words ordinary duty not always giving fatal. It is our instrument to determine will be expressly provided, usual meaning, intent of this case. The unless *12 unambiguous. language original prior assignors where the contained therein is duct lessee and Bolton, v. is relevant on this issue. S.W.2d Jaf fe (Term.App.1991). The cardinal rule of I implied would hold that an contract exist- construction of written instruments is that agree- parties ed between the to the lease parties intention of as ascertained ment to the real estate taxes on the language from the of the instrument controls. property, promptly leasehold when due. construing expressing contracts the words appellee assignee That the this case as parties given intentions should be their assignor’s place stands assumes usual, ordinary meaning, natural and assignee the burden its contract. The party neither is to be favored the construc charged with notice of the terms of the lease mistake, tion. In the absence of fraud or possession accepting of the leased interpreted contract must be and enforced as subjected premises itself to all the covenants though written even it contains terms which running with the land and conditions inher- thought unjust. harsh and This ent within its terms. I would further hold Court cannot make a new contract for the lack of a termination clause in the merely but can construe the lease as lease does not inhibit the lessor from termi- Surplus written. See Paul St. Lines v. nating the lease in the event of violation of its Insurance, Bishops Gate 951 conditions. That in the absence of a termi- (Tenn.App.1986). agreement The lease be- nation clause such termination is not unequivocally requires fore us lessee to automatic and the lessee is entitled to promptly filing the taxes when due. In accordance notice of intent. I would hold that here, analysis re-entry and with the we have made we find the detainer action constituted required notice of intent to terminate the that the lessor was entitled to terminate the agree- lease under the terms of the lease
ment, with the reservation that since the appellate in this should be costs case clause, lease did not contain a termination defendant-appellee, assessed Pio- termination is not automatic. the cir- Under Company neer Investment Service as the cumstances, in the absence of a termination instigator litigation. of this clause, is, the lessee at the least entitled to impending proceedings. Appel- notice of the alleged complaint
lant in its in the trial court that on at least two occasions defendant was put notice its failure to due, promptly when would precipitate suit for of that result failure. The record does not indicate the trial court GRAY, the Estate Josie Administratrix of notices, opportu- considered such or had the Deceased, Peggy Bush, M. so, nity rendering judgment. to do Plaintiff-Appellant, or not these constitute affir-
Whether notices justify re-entry mative action sufficient to v.
first a matter for the determination of the Defendant, COMPANY, FORD MOTOR trial court. This court made clear Mat Crofford, supra, thews that the service of Sarbjeet Springfield Surgery, P.C. process operat in the unlawful detainer suit Kumar, Defendants-Appellees. S. re-entry, ed as a constructive and actual re Tennessee, Supreme Court of entry by unnecessary. the landlord is To at Nashville. court, question paraphrase that is not penalty whether the court will enforce a Jan. forfeiture, recognize it will but whether made contract which the have
contingency have agreed upon them. The con terms between